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Thursday, October 6, 2011

Supreme Court Hears Oral Argument in Hosanna-Tabor v. EEOC

Yesterday, the Supreme Court heard oral arguments in Hosanna-Tabor v. EEOC, a case over whether a disabilities discrimination claim can be brought against a religious school by a secular teacher.

Cheryl Perich was a teacher of primarily secular subject matter at Hosanna-Tabor Lutheran School. She had been certified in the past as a “called” teacher within her denomination, meaning she had undergone some training in religious doctrine. After she became ill and took medical leave, the school tried to get her to resign. When this failed, they expressed concern that Perich could not handle a classroom because of her disability.

When Perich threatened to sue the school for disability discrimination, the school fired her.

At issue in this case is whether Hosanna-Tabor was properly acting within the court-created “ministerial exception” to the Americans with Disabilities Act (ADA) when they fired Perich. Under the exception, which is intended to uphold the First Amendment guarantee of the separation of church and state, a religious institution is immune from discrimination suits if a fired employee had primarily religious duties. The ministerial exception is largely accepted in the lower courts but has not yet been addressed by the Supreme Court.

During yesterday’s argument, Justice Scalia was vocally in favor of the Church’s position, saying “It’s none of the business of the government to decide what the substantial interest of the church is.” However, other justices questioned whether Perich could be considered a ministerial employee who would be subject to the exception.

When the attorney arguing on behalf of Perich suggested that she was not a “minister” because she performed an important secular function, Chief Justice Roberts observed that under such logic the Pope, as a head of state in addition to being the head of the Roman Catholic Church, would be considered not a minister.

Justice Sotomayor expressed concern that allowing the exception to stand would keep teachers from reporting illegal conduct to the government, and asked the lawyer representing the church whether a church should be allowed to fire a teacher for reporting a sex abuse scandal.

If the Court sides with the church in this case, they will be condoning retaliation and discrimination against a teacher at a religious school for reasons unrelated to religious doctrine. Such a decision would insulate religious institutions from discriminating against employees with disabilities under the ADA.